<div dir="ltr"><div class="gmail_default" style="font-family:verdana,sans-serif">Thiago,</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Just to clarify, the Subgroup task is the review of ICANN's litigation cases.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">I'm not familiar with the case you cite. I am familiar with ACPA, since that's been around since 1999 and in rem jurisdiction is a basic feature of the law. In rem jurisdiction dictates that the domain name is located in the United States; the Court had no power to assume anything. </div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">In any event, while there are many fascinating topics under the general heading "domain names and jurisdiction," they don't all fall within our mandate. Even the broadest attempt to define our mandate has not embraced this topic. This is appropriate since ICANN does not register or assign second level domain names. As such, I don't believe there is any real possibility that US courts would find in rem jurisdiction over a second level domain name issued by a registry located outside the US. I'm not aware of any case where plaintiffs have asserted that the courts have in rem jurisdiction over a TLD and since ICANN does not, in fact, register or assign TLDs, this seems perfectly appropriate. As the <u>Weinstein</u> case shows, an attempt under other laws to assert jurisdiction over a TLD based on ICANN's location failed. Plaintiffs are always entitled to come up with novel legal theories, but there, as here, the mere existence of a theory does not give it credibility.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">There are certainly other ACPA cases (as noted, the law has been around since 1999). Thankfully, this has not been defined as part of our mandate even in the most far-reaching interpretation offered in the Subgroup.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Fri, May 26, 2017 at 5:25 PM, Thiago Braz Jardim Oliveira <span dir="ltr"><<a href="mailto:thiago.jardim@itamaraty.gov.br" target="_blank">thiago.jardim@itamaraty.gov.br</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
<div lang="PT-BR" link="blue" vlink="purple">
<div class="m_4718361819987424151WordSection1">
<p class="MsoNormal"><span lang="EN-US">Dear Greg, dear all,<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court
decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location.<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps
we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon
the point I was raising.<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was
prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed
jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was
considered to be within the US because the registry was a US company.<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because
of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for
which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction.<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection
Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other
domain name authority that registered or assigned the domain name is located...". In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction
to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because
assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain
name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned.<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all.<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">Best,<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal"><span lang="EN-US">Thiago Jardim<u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u><u></u></span></p>
<p class="MsoNormal"><span lang="EN-US"><u></u> <u></u></span></p>
<p class="MsoNormal">Thiago Braz Jardim Oliveira<u></u><u></u></p>
<p class="MsoNormal">Divisão da Sociedade da Informação<u></u><u></u></p>
<p class="MsoNormal">Ministério das Relações Exteriores<u></u><u></u></p>
<p class="MsoNormal"><span><a href="tel:+55%2061%202030-6389" value="+556120306389" target="_blank">+55 61 2030 6389</a></span><span><u></u><u></u></span></p>
<p class="MsoNormal"><u></u> <u></u></p>
</div>
</div>
<br>______________________________<wbr>_________________<br>
Ws2-jurisdiction mailing list<br>
<a href="mailto:Ws2-jurisdiction@icann.org">Ws2-jurisdiction@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction" rel="noreferrer" target="_blank">https://mm.icann.org/mailman/<wbr>listinfo/ws2-jurisdiction</a><br>
<br></blockquote></div><br></div>